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AF | PDBR | CY2013 | PD-2013-02087
Original file (PD-2013-02087.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2013-02087
BRANCH OF SERVICE: Army  BOARD DATE: 20140613
SEPARATION DATE: 20080727


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (11B/Infantryman) medically separated for a back condition and left lower extremity (LLE) radicular pain. Neither the back condition nor the radicular pain could be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent L3S1 profile and referred for a Medical Evaluation Board (MEB). The back condition, characterized as “herniated lumbar disc L4-5” and “lumbar spondylosis.” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded “Adjustment Disorder with disturbance of emotions and conduct” as meeting retention standards. The Informal PEB adjudicated “chronic low back pain” and “left lower extremity radicular pain” as unfitting rated 10% and 10% respectively, with application of the VA Schedule for Rating Disabilities (VASRD). The PEB adjudicated the adjustment disorder with disturbance of emotions and conduct as a condition not constituting a physical disability. The CI made no appeals and was medically separated.


CI CONTENTION: The CI writes: “I am still constantly dealing with the issues causing my disability, even after surgery, a failed attempt with a new procedure, and then theres [sic] the countless different types of medications the VA gives me than does nothing more than impede my ability to work and function. I still constantly have numbing and tingling and burning down my left leg and into my toes and sometimes have had my back lock up on me to the point I can’t stand or walk. I regularly go into the VA but their solution is medications and more medications that do not help. There are many things that I used to enjoy that I can’t even do anymore because of my back injury. I can’t even give my daughter a piggy back ride without immense pain and trouble sleeping. I’ve had to acquire a special back chair at work just so I can do my job. My quality of life has been greatly depreciated since injuring my back in Afghanistan, and it only seems to get worse with no end in sight”.


SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2). It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB, when specifically requested by the applicant. The ratings for conditions meeting the above criteria are addressed below. In addition, the Secretary of Defense directed a comprehensive review of Service members with certain mental health conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process. The applicant was notified that he may meet the inclusion criteria of the Mental Health Review Terms of Reference. The mental health condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, may be eligible for future consideration by the Board for Correction of Military Records.

The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Military DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws. The Board considers DVA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.


 RATING COMPARISON :

Service IPEB – Dated 20080613
 VA - (9 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain 5299-5243 10% Lumbar Spine Disc Disease S/P Micro-discectomy L5-S1 5243 10% 20090407
LLE Radicular Pain 8699-8620 10% LLE Radiculopathy 8520 10% 20090407
Adjustment Disorder with Disturbance of Emotions and Conduct Condition Not Constituting a Physical Disability No VA Entry
Other x 0 (Not in Scope)
 Other x 1 20090407
Combined: 20%
 Combined: 30%
Derived from VA Rating Decision (VA RD ) dated 200 90425 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY:

Chronic Low Back Pain and Left Lower Extremity Radicular Pain. While deployed and carrying a heavy load on patrol, the CI fell down a slope over 50 feet with an injury to his back. He was able to complete the patrol in a wheeled vehicle and the deployment with duty limitations. However, his knee and low back pain (LBP) persisted despite conservative measures. A magnetic resonance imaging (MRI) on 24 May 2007 showed disc disease at L4-5 and a herniated disc at L5-S1 with nerve root impingement on the left. Electrodiagnostic testing on 25 May 2007 was consistent with a left sided L5S1 radiculopathy. On 30 August 2007, he underwent surgical repair of the disc. He initially had improvement in his pain for 2 weeks, but then recurrence. A steroid injection was not successful. A follow up MRI on 8 November 2007 showed persistent impingement of the left S1 nerve root. Despite rehabilitation, his symptoms precluded resumption of full duty. On 28 March 2008, a permanent L3 profile was issued and he was entered into the disability evaluation process. The narrative summary was dated 20 May 2008. The CI reported tolerable pain unless aggravated by activity. It did radiate down the LLE. He was unable to participate in impact activities (running, jumping, etc.) and could not carry a load. On examination, his gait was normal as were the motor and sensory examinations. The range-of-motion (ROM) was slightly reduced at 85 degrees of flexion. The reflexes were noted as normal on the MEB examination the previous day. At the VA Compensation and Pension (C&P) exam performed 9 months after separation, the CI reported persistent, intermittent radiation of pain down the LLE. He denied any functional limitations, but did avoid impact activities. He reported 2 days of incapacitation the previous 12 months. The gait was normal as were the motor and sensory examinations. The left ankle reflex was absent. Subsequent C&P examinations showed left ankle reflex which varied between normal and reduced. The ROM is below. The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.
Thoracolumbar ROM
(Degrees)		 PT ~ 3 Mo. Pre-Sep VA C&P ~9 Mo. Post-Sep
Flexion (90 Normal) 85 75
Combined (240) 235 205
Comment Normal Neurological Exam Decreased Achilles Reflex
§4.71a Rating 10% 10%
invalid font number 31502
The Board directs attention to its rating recommendation based on the above evidence. Both the PEB and VA rated the back condition at 10% and used the 5243 code, intervertebral disc syndrome, although the PEB used it analogously. The Board considered the findings and the coding options available for the back. It found no route to a rating higher than the 10% adjudicated by both the PEB and VA. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the LBP condition. The Board then considered the LLE radiculopathy. Electrodiagnostic testing prior to surgery was abnormal. The MEB neurological examination was normal as was the VA examination other than an absent left ankle jerk reflex which was an inconsistent finding. The PEB and VA both rated the radiculopathy at 10%, coding it 8699-8620, sciatic nerve neuritis, and 8520, sciatica, respectively. The Board found no evidence to support a rating higher than the 10% assigned. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the LLE radiculopathy condition.

Contended PEB Conditions. The CI had an implied contention for an unfitting MH condition. The Board’s main charge is to assess the fairness of the PEB’s determination that the adjustment disorder with disturbance of emotions and conduct was not unfitting. The Board noted that the PEB determined that it was a condition which did not constitute a physical disability (IAW DoDI 1332.38.) The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. No MH condition was profiled or implicated in the commander’s statement. The MEB psychiatric examiner did not find a medically unacceptable condition. The MEB determined that the adjustment disorder with disturbance of emotions and conduct did not fail retention standards. It was reviewed and considered by the Board. There was no performance based evidence from the record that any MH condition significantly interfered with satisfactory duty performance to be unfitting. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the adjustment disorder with disturbance of emotions and conduct. Although the PEB determined that this condition did not constitute a physical disability, there is no evidence than there was an unfitting MH condition regardless of diagnosis. Therefore, no additional disability rating is recommended. The Board also observed that the VA did not rate the CI for a service-connected MH condition until he was granted 10% disability for posttraumatic stress disorder effective on 29 February 2012, almost 4 years after separation.

The Board also considered the appropriateness of any changes in the MH diagnosis and a disability rating recommendation in accordance with VASRD §4.130. The MEB forwarded the MH diagnoses of adjustment disorder with disturbance of emotions and conduct to the PEB for adjudication. The PEB adjudicated the CI for the same diagnosis. The Board determined that no MH diagnoses were changed to the applicant's possible disadvantage in the disability evaluation process. This applicant therefore did not meet the inclusion criteria in the Terms of Reference of the MH Review Project.


BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the LBP and LLE radiculopathy conditions and IAW VASRD §4.71a and §4.124a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended MH condition, the Board unanimously agrees that it cannot recommend it for additional disability rating. There were no other conditions within the Board’s scope of review for consideration.


RECOMMENDATION: The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130927, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








                                   
XXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review


 SAMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557


 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXX, AR20150002508 (PD201302087)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation and hereby deny the individual’s application.
This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl                                                  XXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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